PEOPLE v. PASSET (2001)

 On appeal from a judgment convicting him, upon a plea of guilty, of two counts of assault in the second degree (Penal Law § 120.05 [3], [9] ), defendant contends that County Court erred in imposing consecutive determinate terms of imprisonment of six years on each assault count.   We disagree.  “The imposition of consecutive sentences was not illegal since each assault was a separate and distinct act” (People v. Harmon, 264 A.D.2d 941, 942, 695 N.Y.S.2d 758), nor did the first assault constitute a material element of the second assault (see, Penal Law § 70.25[2];  People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212).   Contrary to defendant's contention, Penal Law § 70.25(3) is inapplicable because it concerns definite rather than determinate sentences of imprisonment (see, People v. Acevedo, 258 A.D.2d 140, 142, 695 N.Y.S.2d 572, lv. denied 94 N.Y.2d 819, 702 N.Y.S.2d 589, 724 N.E.2d 381).   The knowing, intelligent and voluntary waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see, People v. Hidalgo, 91 N.Y.2d 733, 736-737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

Judgment unanimously affirmed.

MEMORANDUM: